1 SANTA MONICA, CALIFORNIA; THURSDAY, JANUARY 16, 1997
28:30 AM
3 DEPARTMENT NO. WEQ HON. HIROSHI FUJISAKI, JUDGE
4
5 APPEARANCES:
6 (PER COVER PAGE)
7
8 (REGINA D. CHAVEZ, OFFICIAL REPORTER)
9
10 (Jurors resume their respective
11 seats.)
12
13 THE COURT: Good morning.
14 JURORS: Morning.
15 MR. PETROCELLI: Morning, Your Honor.
16 MR. BAKER: Morning, Judge.
17 MR. LAMBERT: Morning, Judge.
18 MR. MEDVENE: Morning, Your Honor.
[Intervening Testimony Deleted]
3
4GERALD RICHARDS,
5 previously called as a witness on behalf of the
6 Plaintiffs, was duly sworn and testified as follows:
7
8 THE CLERK: You've been sworn previously.
9 You're still under oath.
10 Would you please state your name again
11 for the record.
12 THE WITNESS: Yes, ma'am. It's Gerald B.
13 Richards, R-i-c-h-a-r-d-s.
14
15 DIRECT EXAMINATION
16 BY MR. GELBLUM:
17 Q. Afternoon, Mr. Richards.
18 A. Afternoon.
19 Q. Sir, did you recently have the
20 opportunity to examine certain photographs taken by a
21 gentleman named EJ Flammer on September 26, 1993, in
22 Buffalo, NewYork?
23 A. Yes, I did.
24 Q. I've placed before you on the witness
25 stand certain prints.
26 Are those prints of the photographs you
27 examined?
28 MR. GELBLUM: For the record, those are
143
1 Exhibits 2324 through 2353.
2 A. It's mixed up here.
3
4 (Witness reviews photographs.)
5
6 A. Yes, sir. Appears to be -- a number of
7 them appear to be repeated.
8 Q. Okay.
9 What exactly did you examine, sir?
10 A. I examined the original negatives, proof
11 sheets, or contact sheets, 11 by 14 and 20 by 24
12 enlargements.
13 Q. Where did you conduct this examination?
14 A. For most of that material, I conducted
15 the examination in Buffalo, New York.
16 Q. Did you examine all the negatives of the
17 30 photographs?
18 A. Yes, I did.
19 Q. Does that include a negative 7A, the one
20 that was published in November 1993 in the Buffalo
21 Bills weekly?
22 A. Yes, it did.
23 MR. GELBLUM: Would you put that one up,
24 please, just to remind the jury what we're talking
25 about.
26 Q. Did you examine the negative of that
27 print, sir?
28 A. Yes, sir. Yes, I did.
144
1 Q. And were you examining the various
2 materials you just identified, including the
3 negatives, to determine whether there were any signs
4 of alteration?
5 A. Yes, sir.
6 Q. Did you pay particular attention to any
7 particular part of the negatives?
8 A. The image of Mr. Simpson, and in
9 particular, the lower portion of his body including
10 his pants and shoes.
11 Q. And what equipment did you use to conduct
12 this examination?
13 A. I used again a Bausch and Lomb
14 stereomicroscope with a zoom lens system in it, a
15 number of eye loupes varying from 3 to approximately
16 12 power. I also used a variety of scales, measuring
17 devices. Again, I also used a variety of lighting
18 sources.
19 Q. Okay.
20 Was there any equipment that you used
21 when you examined the Scull photograph which you
22 testified to about two days ago here in court, that
23 you did not use this time?
24 A. The only thing I did not do on these was
25 use a micrometer to determine the thickness of the
26 film. And it was simply because I forgot to bring the
27 micrometer with me.
28 Q. Did that affect your examination in any
145
1 way, sir?
2 A. No, sir, it did not.
3 Q. When you testified a few days ago, you
4 told the jury what you were looking for, the kind of
5 things you were looking for, you examined the Scull
6 photograph -- prints and contact sheets, and the kind
7 of examination you conducted.
8 Did you do the same thing when you
9 examined the Flammer negatives and contact sheets and
10 prints?
11 A. Yes, sir, basically the same procedure.
12 Q. Okay.
13 At the conclusion of your examination,
14 did you find any signs, whatsoever, of any alteration
15 in any of the Flammer negatives, contact sheets, or
16 prints?
17 A. No, I could not.
18 Q. Is it your conclusion there were no signs
19 of alteration in those materials?
20 A. Yes, sir.
21 Based on my analysis of the negatives,
22 the contact sheets, andthe enlargements that I had
23 made -- actually, I did not say before I had 8 by 10,
24 11 by 14, and 20 by 24 enlargements made for
25 examination purposes, and I could find no discernible
26 evidence of alteration or substitution in any of the
27 photographs involving Mr. Simpson.
28 Q. And does that conclusion regarding the
146
1 Flammer photographs have any bearing, any affect at
2 all, on your conclusion regarding the Scull photograph
3 that you testified to a few days ago?
4 MR. LEONARD: Your Honor, I'm going to object
5 to that, beyond the scope based on your earlier ruling
6 with regard to my cross-examination.
7 THE COURT: Well, the scope's been enlarged, I
8 think.
9 Overruled.
10 A. Yes, sir, of course. That supports it
11 substantially, that we have images and different
12 poses, different situations of an individual having
13 the same identical clothing, including jacket, tie,
14 shirts, pants and shoes.
15 With the absence of any type of
16 suggestion or indication of alteration, it has just
17 substantiated the conclusion I had regarding the Scull
18 photograph.
19 Q. Thank you, sir.
20 MR. LAMBERT: I have nothing further.
21
22 CROSS-EXAMINATION
23 BY MR. LEONARD:
24 Q. Nice to see you again, Mr. Richards.
25 A. My pleasure, sir.
26 Q. Now, did you say that you examined the
27 negative that was purported to be the source for that
28 photograph that was published in the Buffalo Bills
147
1 News?
2 A. Yes, sir, I did.
3 Q. Okay.
4 You were never provided with the actual
5 black-and-white print that was utilized for that
6 photograph, were you?
7 A. No, sir, I never was.
8 Q. Now, you said that you examined all of
9 the negatives; is that right?
10 A. Yes, sir.
11 Q. Okay.
12 Now, in your career as an FBI agent, you
13 testified earlier that you had been involved in two or
14 three cases a year involving questioned photographs,
15 right?
16 A. Approximately, yes.
17 Q. Okay.
18 Would you agree with me, sir, that it
19 would be a very rare occasion that you would have
20 access to what was purported to be the original
21 negatives of questioned photographs when you undertook
22 those examinations at the FBI?
23 A. Yes, sir, that's true.
24 Q. Very rare. Maybe once every two or three
25 years, correct?
26 A. I'd say it was probably correct, yes.
27 Q. Now, you aren't testifying to this jury
28 that you are 100 percent certain that these
148
1 photographs are fake, are you?
2 A. I'm testifying to this jury --
3 Q. Can you answer my question yes or no?
4 A. I don't know if I can answer that yes or
5 no correctly.
6 Q. Do you remember me asking you that
7 question in the deposition recently and you answering
8 that no, you can't say that?
9 Do you remember that, sir?
10 A. Yes, I did.
11 Q. Is that your position now, before this
12 jury, or do you want to change your position?
13 A. No, I don't want to change my position.
14 But I would like the question restated, if I could,
15 'cause I'm not sure what you mean by it.
16 Q. You can ask -- Mr. Gelblum can restate it
17 if he needs to.
18 Now, you would agree with me, would you
19 not, that if someone is motivated enough, and has
20 access to the most advanced techniques and technology,
21 they can create a fake photograph that is virtually
22 impossible to detect?
23 Would you agree with that?
24 MR. GELBLUM: Objection, this was asked and
25 answered the other day, Your Honor.
26 MR. LEONARD: We're dealing with different
27 photographs.
28 MR. GELBLUM: Exact question.
149
1 THE COURT: We'll give Mr. Leonard wide
2 latitude.
3 A. I would --
4 MR. LEONARD: Thank you.
5 A. I would say given enough time, equipment,
6 money, talent, it would take all four together, and
7 the concerted effort, yes, sir.
8 Q. (BY MR. LEONARD) They would probably
9 need to be pretty considerably motivated, wouldn't
10 they, sir?
11 A. Yes, sir.
12 Q. Now, you went up to Buffalo, what, on
13 January 7?
14 A. Yes, sir.
15 Q. Spent about a total of little less than
16 two hours actually looking at photographs?
17 A. Little more than that. About two and a
18 half hours physically looking at the photographs.
19 Q. And one of the things you were looking
20 for, of course, was this -- as you described before,
21 any evidence of -- of digital manipulation, correct?
22 A. That's correct.
23 Q. And in order to do that, you had to look
24 around carefully, microscopically, around the edge of
25 each photograph, each negative, correct?
26 A. Well, the edge itself is one spot that
27 you look, but the presence of digital manipulation
28 would not necessarily only show up on the edges.
150
1 Q. So my question was, you had to carefully
2 look around, microscopically, the edge of each
3 negative, right?
4 A. Yes, sir.
5 Q. In order to do the evaluation properly?
6 A. Yes, sir.
7 Q. And you had to look around the edge of
8 anywhere in the photograph, any particular element in
9 the photograph that you were particularly interested
10 in, correct?
11 A. Correct.
12 Q. And you had to do that carefully, and had
13 to do that microscopically, millimeter by millimeter,
14 correct?
15 A. Yes, sir.
16 Q. And it's your testimony that you did that
17 with each and every negative, each and every print, is
18 that right, sir?
19 A. Each and every negative containing images
20 of Mr. Simpson particularly.
21 Q. And there were 30 of them?
22 A. Yes, sir.
23 Q. And you testified at your deposition that
24 you spent, what, about two minutes on each negative;
25 is that right?
26 A. Somewhere between two and three minutes,
27 I believe I said.
28 Q. Now, you've also testified earlier that
151
1 this isn't an exact science, what you do?
2 A. That's true.
3 Q. It involves some subjective judgments,
4 right?
5 A. Yes, sir.
6 Q. Some calls about whether or not
7 phenomenon that you see are indicia of fakery or
8 otherwise innocent, correct?
9 A. That's correct.
10 Q. Now, you did find some scratches along
11 the photographs or along the negatives that you saw up
12 in Buffalo, correct?
13 A. Scratches on the negatives themselves.
14 Q. And also you found what you thought might
15 be continuous scratches along the side of the
16 negatives, correct?
17 A. No, I found continuous scratches on
18 both -- the bulk of the negatives on the sides and in
19 the center.
20 Q. Okay.
21 And in the case of the Flammer
22 photographs, sir, unlike the Scull photograph, you
23 were unable to discern or reach a conclusion whether
24 these scratches could have been caused by the camera
25 or by some other mechanism; is that right?
26 A. Yes, sir. I did not -- I did not attempt
27 to determine if they were caused by either the camera
28 mechanism or the processing mechanism. I just
152
1 recognize that they were scratches.
2 Q. And you also weren't able to match each
3 scratch with -- in other words, as the scratch
4 continued along the side, you weren't -- there were
5 numerous of them, you told me there were many, many,
6 many, and you were unable to match each of them up.
7 Remember you testifying to that at the
8 deposition?
9 A. Yes, sir.
10 Q. Now, this is an area where you had to
11 make a subjective judgment; isn't that true?
12 A. Yes, sir.
13 Q. You told me that there are no standards
14 to determine whether or not you can call a scratch
15 continuous, that you just have to match up what you
16 thought was a majority of the scratches.
17 Do you remember that?
18 A. Yes, sir.
19 Q. That's something that's subjective,
20 there's nothing -- there's no guidelines we look to,
21 there's no books, there's no nothing that can tell us
22 about that, right?
23 A. That's correct.
24 Q. That's just something that you have to
25 decide yourself?
26 A. Yes, sir.
27 Q. And that goes for your analysis of many
28 of the phenomenon that we've been talking about, both
153
1 with regard to the Flammer photographs and the Scull
2 photograph, correct?
3 A. Yes, sir.
4 Q. Now, you had to obtain some of the
5 materials from a fellow named Rob MacElroy, correct?
6 A. That's correct.
7 Q. And you had contacted MacElroy on, what,
8 the 7th of January, or was it the 8th?
9 A. I believe -- well, I believe late evening
10 of the 7th he contacted me, also on the 8th, and then
11 I believe also on the 10th and 11th I want to say.
12 Q. Now, MacElroy told you that he was in New
13 York at the time that he contacted you; is that
14 correct?
15 A. That's correct.
16 Q. And he told you that he was there in an
17 attempt to sell the Flammer photographs?
18 MR. GELBLUM: Objection, hearsay.
19 THE COURT: Sustained.
20 Q. (BY MR. LEONARD) Was it important to
21 you, sir, to try to determine whether or not there
22 was, as you described earlier in your testimony, to
23 have enough motivation -- you described four elements,
24 and one of them was motivation to fake the photograph,
25 right?
26 A. Yes.
27 Q. Would you agree with me that making a lot
28 of money from a photograph would be -- could certainly
154
1 provide motivation to fake photographs?
2 MR. GELBLUM: Objection, argumentative, Your
3 Honor.
4 Q. (BY MR. LEONARD) Would you agree with
5 me?
6 MR. GELBLUM: Objection.
7 THE COURT: Well, you may answer.
8 A. That would seem like a logical motive,
9 yes, sir.
10 Q. (BY MR. LEONARD) And MacElroy told you
11 that he was attempting to sell the photographs,
12 correct?
13 A. Yes.
14 MR. GELBLUM: Objection, hearsay.
15 THE COURT: I'll sustain that.
16 MR. GELBLUM: Move that it be stricken.
17 Q. (BY MR. LEONARD) I want you to assume,
18 sir, for purposes of your analysis, the Flammer
19 photographs are being rented, sir, for $12,000 a week,
20 they're being rented to various media outlets.
21 Does that affect your opinion in any way,
22 sir?
23 A. No, sir.
24 Q. Does it affect your opinion that they're
25 being -- they're trying to rent that evidence to
26 various news outlets for $18,000?
27 MR. GELBLUM: Objection.
28 Q. (BY MR. LEONARD) For -- till the end of
155
1 jury --
2 MR. GELBLUM: He's trying to get something in
3 front of the jury that he can't get in front of
4 through admissible means.
5 MR. LEONARD: I can prove it up.
6 MR. GELBLUM: Objection.
7 MR. PETROCELLI: Objection.
8 THE COURT: How many of you are going to
9 object?
10 MR. GELBLUM: I am.
11 THE COURT: Objection sustained.
12 Mr. Leonard, you want to prove something
13 up, prove it up with evidence.
14 MR. LEONARD: May we approach?
15 THE COURT: No. You are not permitted to prove
16 up matters in this fashion.
17 MR. LEONARD: I'd like to approach, Your Honor.
18 THE COURT: No.
19 MR. LEONARD: I have a document I'd like to
20 show --
21 THE COURT: Excuse me. I will not permit you
22 to prove up that fact in that fashion.
23 MR. LEONARD: Your Honor, you don't know what
24 the document is.
25 THE COURT: You're not going to prove it up
26 with this witness during this examination.
27 MR. LEONARD: May we approach, Your Honor?
28 THE COURT: No. Now continue your examination.
156
1 MR. LEONARD: I'd like to ask him if this
2 document would affect his opinion.
3 MR. PETROCELLI: He said it wouldn't.
4 THE COURT: Continue your examination.
5 MR. LEONARD: Your Honor, I have nothing
6 further based on your ruling.
7 THE COURT: All right. Sit down.
8
9 REDIRECT EXAMINATION
10 BY MR. GELBLUM:
11 Q. Did you see any sign of alteration in
12 negative 7-A, the one reprinted in the Buffalo Bills
13 Weekly?
14 A. No, sir, I did not.
15 Q. Does the fact the negative from that
16 photograph was printed in November, 1993, some eight
17 months before the murders in this case, have any
18 affect in your opinion in terms of motivation?
19 A. As far as motivation goes, I would think
20 if you were going to alter a photograph, you would
21 definitely want -- not want to have it published ahead
22 of the -- the subjective time that's in question.
23 Q. Mr. Leonard asked you whether you had
24 access to original negatives frequently before?
25 A. The answer was no.
26 Q. Okay.
27 Does having access to the original
28 negatives make your determination more certain or less
157
1 certain?
2 A. More certain.
3 Q. And what do continuous scratches tell you
4 about the sheet of negatives?
5 A. Well, continuous scratches -- the reason
6 I look for scratches, let's put it this way, the
7 reason I look for scratches particularly is usually
8 only in -- for the most part, in cut negatives where
9 we have negatives that are cut, so I can determine
10 that, in fact, at one time they were contiguous --
11 continuously one negative.
12 But there may be many, many types of
13 scratches. Some due to camera, some due to the
14 processor, some due to mishandling, sometimes just
15 placing in and out of the enlarger will cause
16 scratches.
17 Some of those won't match up because
18 they've been produced on the negative after the actual
19 cutting has been done.
20 Just as long as the majority of them have
21 been matched up, I can be fairly confident in my own
22 mind this was one negative, all at one time, no one
23 has substituted, let's say a proportion of five images
24 into that group.
25 That's the basic reason we look at the
26 scratches.
27 Q. Any of those scratches in any way
28 indicative of any alteration in these negatives?
158
1 A. No, sir.
2 MR. GELBLUM: Thank you. I have nothing
3 further.
4
5 RECROSS-EXAMINATION
6 BY MR. LEONARD:
7 Q. You were asked a question by Mr. Gelblum
8 about a photograph that was purported to have been
9 published.
10 You have no idea what the chain of
11 custody of that negative was, do you, sir?
12 A. No, sir, I don't.
13 Q. You have no idea who had it and what they
14 did with it, do you?
15 A. No, sir, I do not.
16 MR. LEONARD: Thank you.
17 MR. GELBLUM: Nothing further.
18 THE COURT: You may step down.
19 THE WITNESS: Thank you, sir.
20
MR. LEONARD: Your Honor, I'd like to approach.
21 THE COURT: Jurors, you're excused for about
22 ten minutes. Don't talk about the case; don't form or
23 express any opinions.
24
25(Jurors exit courtroom.)
26
27 THE BAILIFF: Please be quiet in the courtroom.
28 We still are in session.
159
1 MR. GELBLUM: Your Honor, you just want to do
2 it here?
3 THE COURT: Right (indicating to counsel
4 table.)
5(The following proceedings were
6 held in open court outside the
7 presence of the jury.)
8
9 MR. PETROCELLI: On this issue is the McElroy
10 photographs, I'm just warning you --
11 MR. LEONARD: Really, Judge Petrocelli.
12 THE COURT: Will you stop that.
13 MR. LEONARD: No. He started it.
14 THE COURT: Counsel, you want to get in the
15 fact that somebody's renting these pictures out?
16 MR. LEONARD: Yeah.
17 THE COURT: Get it in. But do it by laying
18 proper foundation. I'm not going to let you put that
19 before the jury based upon cross-examination of an
20 expert who has nothing to do with renting the
21 photographs. You have somebody to lay foundation for
22 that, put him on.
23 MR. LEONARD: We just got this document from
24 MacElroy. We'll bring him in. We'll have to bring
25 him on Tuesday.
26 THE COURT: No. He's not going to come in on
27 Tuesday.
28 MR. LEONARD: We just got this document. We
160
1 just get these photographs. It's -- as you know, we
2 have been complaining all along, and now you're going
3 to not let me do this.
4 They were allowed to put the photographs
5 before they were authenticated in front of my expert
6 without any notice.
7 I can't do that with this from MacElroy
8 about the photographs that he's sending out all over
9 the country.
10 I don't think that's fair.
11 MR. PETROCELLI: Are you finished?
12 Couple things, Your Honor.
13 They've known about Rob MacElroy since
14 July 1 when they took the Scull deposition. At no
15 time did they ever attempt to take any discovery from
16 him and they knew that he was marketing photographs.
17 Secondly --
18 MR. LEONARD: This --
19 MR. PETROCELLI: Excuse me.
20 This witness said it makes no difference
21 in his analysis of the authenticity --
22 THE COURT: Mr. Petrocelli, it doesn't make any
23 difference with regard to this particular witness.
24 It is a relevant piece of evidence, and
25 defense ought to have an opportunity to put it before
26 the jury to show motivation.
27 What it goes to and how much weight it
28 carries, that's for the jury to decide.
161
1 MR. PETROCELLI: I would suggest --
2 THE COURT: Now, there's more than one way to
3 skin a cat, and that doesn't mean you have to bring
4 in, necessarily, the person who circulated that item.
5 MR. LEONARD: Someone who received it, right.
6 THE COURT: Why don't you use your lawyerly
7 skills and find the way to skin that cat.
8 MR. PETROCELLI: Your Honor, I just want to
9 make an objection for the record. I think this is
10 collateral at this point. He's already established
11 from Mr. Flammer that the photographs are being sold
12 and --
13 THE COURT: Counsel --
14 MR. PETROCELLI: Other photographs not
15 involving Mr. MacElroy, and if we have to go down that
16 route, we're going to have to call somebody in to meet
17 that evidence, Your Honor, and I don't want to have
18 to --
19 THE COURT: Mr. Petrocelli --
20 MR. PETROCELLI: -- keep doing this.
21 It has to stop someplace.
22 THE COURT: Yeah. I'm going to be the one
23 that's going to stop it.
24 MR. PETROCELLI: I would hope that it would
25 stop soon.
26 THE COURT: I'm going to permit him to offer
27 evidence if he can legitimately, under the Evidence
28 Code of --
162
1 MR. LEONARD: Thank you.
2 THE COURT: -- this document.
3 MR. PETROCELLI: This afternoon?
4 THE COURT: Yeah.
5 MR. LEONARD: You're going to give me, what,
6 three hours?
7 THE COURT: Mr. Leonard, you use your skills.
8
9(Recess)
10
11 (The following proceedings were
12 held in open court outside the
13 presence of the jury.)
14
15 MR. LEONARD: Can we display our thing?
16 THE COURT: Yes.
17 MR. PETROCELLI: No.
18 THE COURT: You got to display yours.
19 All right.
20 We're back in session.
21 (The following proceedings were
22 held in open court outside the
23 presence of the jury.)
24
25 THE COURT: Okay.
26 For the benefit of the audience,
27 Mr. Leonard has been successful in finding a way of
28 skinning the cat, and Mr. Petrocelli and Mr. Kelly and
163
1 Mr. Brewer have stipulated that the document may be
2 received into evidence.
3 MR. LEONARD: Thank you.
4 THE CLERK: It will be Exhibit 2406.
5 MR. PETROCELLI: And I want dinner tonight.
6 THE COURT: Okay. So when the jury comes in.
7 Jury on its way up.
8
9
10 (Jurors resume their respective
11 seats.)
12
13 MR. LEONARD: Your Honor, we'd like to publish
14 the document in question to the jury.
15 THE COURT: You may.
16 MR. LEONARD: That will be the McCelroy price
17 sheet.
18 THE COURT: You may.
19 MR. LEONARD: I'd like to read --
20 THE COURT: Would you like to mark it?
21 MR. LEONARD: Oh, I'm sorry. 2406.
22 (The instrument herein referred to
23 as The McElroy price sheet was
24 marked for identification as
25 Defendant's Exhibit No. 2406.)
26
27 MR. PETROCELLI: We have no objection to that.
28 THE COURT: Thank you.
164
1 THE CLERK: It's received?
2 THE COURT: Received.
3
4 (The instrument previously marked
5 as Defendants' Exhibit 2406 was
6 received in evidence.)
7 MR. LEONARD: The rates for North American use
8 of the package of seven Flammer photographs and
9 information are as follows:
10
11 (Exhibit 2406 displayed on the
12 Elmo screen.)
13 MR. LEONARD: Thank you, Your Honor.
14
15 (Exhibit 2406 removed from the
16 Elmo screen.)
17
18 MR. MEDVENE: Agent Bodziak.
19 THE CLERK: I don't believe it was on record
20 that Exhibit 732 has now been received in evidence.
21 THE COURT: It's received as redacted.
22 MR. PETROCELLI: As redacted, Your Honor.
23 Thank you.
24 (The instrument herein referred to
25 as a redacted version of letter
26 from Nicole Brown Simpson to OJ
27 Simpson was received into evidence
28 as Plaintiffs' Exhibit No. 732.)
165
1 THE CLERK: Just have a seat, sir.
2 You have been sworn. Briefly, you are
3 still under her oath.
4 Would you please state your name for the
5 record.
6
7 THE WITNESS: William J. Bodziak,
8 B-o-d-z-i-a-k.
9
10 WILLIAM J. BODZIAK,
11 called as a witness on behalf of the Plaintiffs in
12 rebuttal, having been previously duly sworn, was
13 examined and testified further as follows:
14
15 DIRECT EXAMINATION
16 BY MR. MEDVENE:
17 Q. Agent Bodziak, you were last here a
18 little over a month and a half ago --
19 A. That's correct.
20 Q. -- to reintroduce you to the jury, among
21 other things, you're an expert shoe comparison analyst
22 with the FBI?
23 A. Yes.
24 Q. You've been doing that work for 20-odd
25 years?
26 A. Since 1973.
27 Q. Now, just to get your testimony in
28 context, you previously testified, in your opinion,
166
1 that the shoes being worn by Mr. Simpson in the
2 photograph taken by Mr. Scull, September 26, 1993 --
3 we're putting up on the easel Exhibit 2061 -- were
4 Bruno Magli shoes, Lorenzo style; is that correct?
5 A. That's correct.
6 (The instrument herein referred to
7 as comparison board was marked for
8 identification as Plaintiffs'
9 Exhibit No. 2061.)
10
11 Q. And previously you explained to the jury
12 why you reached that conclusion?
13 A. Yes.
14 Q. I want to place before you now, sir,
15 certain exhibits -- Exhibit 395.
16 And I ask you what that is, sir.
17 A. This is a size 12 Bruno Magli Lorenzo
18 shoe.
19 Q. I'm going to place before you eight
20 photographs and ask you to look at the back of each
21 and read the exhibit number, if you would.
22 And while you're looking at those and
23 identifying them, Mr. Foster is going to display those
24 photos on the TV monitor for the jury.
25 These are photos, we'll represent to you,
26 were photos taken by E. J. Flammer on
27 September 26, 1993, at the same game, or prior to the
28 same game where Mr. Scull's photos were taken.
167
1 First, you have in front of you what's
2 been marked 2297; is that correct, sir?
3 A. Yes, it is.
4 Q. Could you tell the jury what that is?
5 A. This is a photograph of Mr. Simpson and
6 another individual. It's an 11-by-17-inch copy. It's
7 what I examined in the laboratory. On the back of it,
8 it says Exhibit 2297, reel 2, number 4.
9 Q. The next exhibit, sir, is that 2298?
10 A. 2298. Yes. sir.
11 Q. What is that?
12 A. This is another 11-by-17-inch print
13 depicting a close-up shot, or a crop shot of Exhibit
14 2297, focusing into the shoe and leg area. And it is
15 from roll 28, number 4.
16 Q. Same shot as the 2297, only a crop shot
17 of 2297?
18 A. That's correct.
19 Q. Would you take a look at the next photo.
20 Is that 2299, sir?
21 A. Yes, it is. Exhibit 2299 is a picture of
22 Mr. Simpson on a football field with another
23 individual, from roll number 1, frame 22 -- 24-A.
24 Q. Is that another photo that you examined
25 at the FBI lab?
26 A. Yes, it is.
27 Q. Next, sir, 2300.
28 A. 2300 is a crop shot, an enlarged shot of
168
1 the feet from the same picture, 2299, and it is from
2 roll 1, 24-A.
3 Q. The next photo in front of you, sir, is
4 that 2301?
5 A. Yes. Exhibit 2301 is a picture of
6 Mr. Simpson with another individual on a football
7 field, roll 1, number 27-A.
8 And I also examined this.
9 An enlarged area from 2301 is represented
10 in the next picture, which is Exhibit 2302. That's
11 also from roll 1, frame 27-A.
12 Q. Now, the next photo, sir, doesn't have a
13 number in front of it. We're going to number it next
14 in order, which I believe is 2407.
15 THE CLERK: Correct.
16 Q. (BY MR. MEDVENE) Would you be good
17 enough to put 2407 on the back of it, sir.
18 A. (Witness complies.)
19 (The instrument herein referred to
20 as 11-by-17-inch print of five
21 individuals, in addition to
22 Mr. Simpson, on a football field,
23 Marked roll 1, number 78-A, was
24 marked for identification as
25 Plaintiffs' Exhibit No. 2407.)
26
27 MR. MEDVENE: Zoom in.
28 Q. (BY MR. MEDVENE) Yes, sir?
169
1 A. Exhibit 2407 is an 11-by-17-inch print of
2 five individuals, in addition to Mr. Simpson, on a
3 football field. And on the back it says roll 1,
4 number 78-A.
5 Q. And 2408, sir?
6 A. Do you me to mark it?
7 Q. Excuse me. The next photo in order would
8 be -- next in order would be 2408.
9 Would you be good enough to mark that.
10 A. (The witness complies.)
11 (The instrument herein referred to
12 as 11-by-17-inch print of the same
13 frame from roll 1, number 7-A, as
14 Exhibit 2407, but zooming in on
15 the legs and feet of the
16 individuals in the center of that
17 photograph, including Mr. Simpson,
18 was marked for identification as
19 Plaintiffs' Exhibit No. 2408.)
20
21 Q. (BY MR. MEDVENE) Can you tell us what
22 that is?
23 A. Exhibit 2408 is an 11-by-17-inch print of
24 the same frame from roll 1, number 7-A, as Exhibit
25 2407, but zooming in on the legs and feet of the
26 individuals in the center of that photograph,
27 including Mr. Simpson.
28 Q. And did you use that, also, in the
170
1 analysis that you made?
2 A. Yes, I did.
3 Q. Were you asked by me, sir, to perform an
4 examination and an analysis?
5 A. Yes, I was.
6 Q. What was your understanding of the task
7 you were to perform?
8 A. I was requested to examine the shoes that
9 Mr. Simpson is wearing as depicted in the eight
10 photographs which I have just described and read the
11 exhibit numbers of, and determine if they were Bruno
12 Magli Lorenzo shoes.
13 Q. Did you make that examination, sir?
14 A. Yes, I did.
15 Q. Did you form an opinion?
16 A. Yes, I did.
17 Q. What is that opinion?
18 A. My opinion is that the shoes depicted in
19 those eight exhibits are Bruno Magli Lorenzo shoes.
20 Q. What is the basis for your opinion, sir?
21 A. Do you want me to --
22 Q. I'd like you to --
23 A. Can I use this shoe to demonstrate that?
24 Q. I'd like you, with the Court's
25 permission, to walk down so the jury can more easily
26 see, and use your judgment with regards to any of the
27 photos you want to use, or the shoe itself, in
28 explaining the bases for your opinion.
171
1 THE COURT: Didn't we go through this before?
2 MR. MEDVENE: We went through it, Your Honor
3 with respect to the Scull photograph, and that the
4 Scull photograph was the Bruno Magli shoe.
5 Now we're using a different photograph,
6 the Flammer photograph, and going through the same
7 analysis, Your Honor.
8 THE COURT: Is there some difference between
9 the two shoes that are in the photographs?
10 MR. PETROCELLI: No.
11 THE COURT: Then why are we going through the
12 same motion twice?
13 MR. MEDVENE: We believe there is not, sir.
14 And if Mr. Simpson's side is willing to agree that
15 Bruno Magli shoes are depicted in the Flammer photos,
16 there will be no need to go through this.
17 MR. LEONARD: Stipulate.
18 MS. BLUESTEIN: Stipulate.
19 MR. PETROCELLI: They stipulate.
20 THE COURT: Okay.
21 MR. MEDVENE: So the defense stipulates that
22 the shoes in the Flammer photos are Bruno Magli
23 Lorenzo style shoes, the same shoes that are shown in
24 the Scull photo as being worn by Mr. Simpson?
25 MR. LEONARD: Same style shoes, Your Honor.
26 THE COURT: Well, that's kind of an unsafe
27 stipulation.
28 Go ahead.
172
1 MR. MEDVENE: No choice. We'll go ahead.
2 Q. (BY MR. MEDVENE) Would you be good
3 enough to come down, and let's go through why, in your
4 opinion, the shoes depicted in the Flammer photos, in
5 your opinion, are Bruno Magli Lorenzo-style shoes?
6 A. This photo here.
7 Q. Any photo you want, you can also --
8 A. This is fine. I can use this.
9 Q. Yes, sir.
10 A. And you're using Exhibit 395?
11 Q. Yes, sir.
12 THE COURT REPORTER: The exhibit on the Elmo
13 is?
14 MR. PETROCELLI: The exhibit on the Elmo is
15 2408.
16
17 (Plaintiffs' Exhibit 2408
18 displayed on the Elmo screen.)
19
20 Q. (BY MR. MEDVENE) Go ahead, sir.
21 THE WITNESS: No, bigger (indicating to Elmo).
22 Just a little higher (indicating to
23 Elmo).
24
25 (Mr. Foster adjusts exhibit
26 displayed on the Elmo screen.)
27
28 THE WITNESS: Okay. That's fine.
173
1 A. Okay. I examined the shoes depicted in
2 the eight photographs which I have just described,
3 which depict shoes on a football field, on
4 Mr. Simpson.
5 And using this one to demonstrate, some
6 of the observations I made to form my conclusion, I
7 first observed the characteristics of the edge profile
8 of the sole.
9 As I had previously testified to, the
10 sole has a lot of contouring, a lot of high and low
11 spots, and it begins with a high ridge, and then a
12 groove, which is a stitching groove.
13 And then after that, there's another high
14 ridge. This occupies a very small area right up in
15 this area here (indicating). There's a high spot,
16 then a groove where the stitching is, then another
17 groove.
18 Then there's a much wider area of the
19 shoe which rolls out, contours out; then it goes into
20 another groove.
21 And then below that is another wide area.
22 And that's the area which continues uninterrupted
23 around the bottom of the shoe.
24 In looking at the features of this
25 Exhibit 395 shoe, and the sole in these photographs,
26 these are consistent and are the same in those five
27 regards.
28 Looking also at the curvature of the
174
1 sole at this particular point (indicating), and the
2 angle of the heel, which is trimmed over, so you have
3 a -- somewhat of an angle, because there's a point cut
4 off that heel, as opposed to the other side, which is
5 more than what you see.
6 I observed these characteristics in these
7 photographs.
8 There's also the contouring that you can
9 see here again, the heel which I had pointed out
10 before in the Scull photographs. (Indicating.)
11 Looking at the upper of the shoe, you can
12 see various features, such as the seam which runs
13 around the toe area. And you can see that on Exhibit
14 395.
15 I observed that, as well as the seam here
16 in the front portion of the area, which the lace holes
17 go through. (Indicating.) You can see the lace holes
18 here (indicating). One of those with a light spot
19 reflecting the liner, that's layered under. You can
20 see the bottom reference point of that area and the
21 back reference point. So you can see these features
22 of this area of the shoe.
23 Based on these characteristics and the
24 fact that Bruno Magli made these soles -- these soles
25 are uniquely made for them by them exclusively for
26 this shoe, as well as the dyes, which cut out the
27 various shapes and components, which were then
28 stitched together.
175
1 The independent construction in one
2 factory for Bruno Magli of this upper, combined with
3 the independent design of this contoured sole with
4 these features, in another factory combined, makes
5 this unique.
6 Q. (BY MR. MEDVENE) You say in another
7 factory. You're saying the soles were made in one
8 factory and the tops were made in another?
9 A. For Bruno Magli, and then assembled
10 together.
11 Q. Based on your -- you were at the factory,
12 weren't you?
13 A. Yes.
14 The upper was made at the 4C factory; the
15 sole was made at the Silga factory. And they were
16 made by Bruno Magli through those factories and
17 assembled in the 4C factory.
18 Q. As part of your opinion in your
19 investigation, did you make a determination whether
20 the dye used to make the upper was used in any other
21 shoe?
22 A. I was told these were not. These were
23 specifically made -- the soles for the bottom of the
24 shoe and the uppers were specifically made for that
25 design and are no longer used.
26 Q. By each separate factory?
27 A. Yes, sir. Yes.
28 MR. MEDVENE: Thank you. I have nothing
176
1 further.
2 THE COURT: Cross-examine.
3
4 CROSS-EXAMINATION
5 BY MR. P. BAKER:
6 Q. Good afternoon, Mr. Bodziak.
7 A. Good afternoon.
8 Q. Pleasure to see you again.
9 A. Pleasure to see you.
10 Q. Did you check my taxes when you went back
11 there?
12 A. I forgot to do that. I'm sorry.
13 Q. Hope you forget again.
14 You haven't been paid anything by the
15 plaintiffs' attorneys; is that right?
16 A. No, I haven't.
17 Q. Never submitted a bill, correct?
18 A. No, I haven't.
19 Q. Is there any standing order in the Bureau
20 that agents are not supposed to testify in this case?
21 A. I'm not aware of any.
22 Q. You don't know any reason why
23 Rodger Martz wouldn't be testifying in this case, do
24 you?
25 MR. MEDVENE: Objection. Relevance;
26 materiality; outside the scope.
27 THE COURT: Excuse me. The Clerk was
28 whispering in my ear.
177
1
2 (The Court reviews realtime
3 screen.)
4
5 THE COURT: Sustained.
6 Q. (BY MR. P. BAKER) You are friends with
7 Gerald Richards, aren't you?
8 A. I've known him since about 1971, I
9 believe.
10 Q. You actually recommended that he work on
11 this case, right?
12 A. Yes.
13 Q. You guys had lunch together today?
14 A. Yes, we did.
15 Q. Over at the Double Tree, right?
16 A. Yes, we did.
17 Q. Okay.
18 A. Probably like half the courtroom.
19 MR. PETROCELLI: Including Mr. Baker.
20 Q. (BY MR. P. BAKER) Now, after you came to
21 your preliminary conclusions during your work on the
22 criminal case, you are aware an investigation was
23 conducted by the LAPD and FBI to determine whether or
24 not any receipts or sales slips could be found
25 identifying OJ Simpson as a purchaser of Bruno Magli
26 shoes; correct?
27 MR. MEDVENE: Objection. Outside the scope;
28 asked and answered, when the agent was previously
178
1 here.
2 THE COURT: Sustained.
3 Q. (BY MR. P. BAKER) You know there was no
4 receipt found, right?
5 MR. MEDVENE: Same objection. Counsel knows
6 it's inappropriate.
7 THE COURT: Sustained.
8 Q. (BY MR. P. BAKER) Now, Mr. Bodziak,
9 you're aware there was an expert designated to testify
10 as the person most knowledgeable of Bruno Magli shoes
11 by the plaintiff?
12 MR. MEDVENE: Objection. Outside the scope.
13 THE COURT: Sustained.
14 MR. MEDVENE: Lack of relevance.
15 Q. (BY MR. P. BAKER) You would agree, would
16 you not, sir, that, as a result of your testimony in
17 the criminal case, that there's a motive -- Strike
18 that.
19 You would agree, would you not, sir,
20 that, if you would doctor a photograph at $18,000 a
21 pop for OJ Simpson, that you'd probably put a Bruno
22 Magli shoe on it, wouldn't you?
23 MR. MEDVENE: Objection. Outside the scope.
24 THE COURT: Sustained.
25 Jury will disregard that question.
26 Q. (BY MR. P. BAKER) Were you ever asked do
27 compare the shoes in the Scull photograph to the shoes
28 in the Flammer photograph?
179
1 A. I was never asked to do that.
2 Q. Were you ever asked to look at the
3 newspaper article that appeared in the November 30
4 issue of Buffalo Bills -- something.
5 MR. GELBLUM: Reports.
6 Q. (BY MR. P. BAKER) -- Buffalo Bill
7 Reports, to determine whether or not those were Bruno
8 Magli shoes?
9 A. No, I was not.
10 Q. Were you ever provided with a
11 black-and-white still of the photograph that appears
12 in that newspaper report?
13 A. No, I was not.
14 Q. You were never asked to determine whether
15 or not the shoes that appeared in either the Scull
16 photos or the Flammer photos were size 12, correct?
17 A. No.
18 Q. That's not correct, or that's correct?
19 A. I was not asked specifically to do that,
20 no.
21 Q. The photographs you received from the
22 plaintiffs regarding the Flammer photograph were given
23 a Q designation; is that right?
24 A. That's correct.
25 Q. What's the Q stand for?
26 A. Question.
27 MR. P. BAKER: Nothing further.
28
180
1 REDIRECT EXAMINATION
2 BY MR. MEDVENE:
3 Q. Counsel asked you about the Scull and the
4 Flammer photos, and whether you were asked to compare
5 them.
6 You've seen, of course, the Scull photos
7 and the Flammer photos?
8 A. Yes, I have.
9 Q. Do you have an opinion whether or not
10 those photos have the same characteristics?
11 A. They do.
12 MR. P. BAKER: Beyond the scope, in light of
13 his testimony.
14 MR. MEDVENE: He opened it.
15 THE COURT: I don't think so.
16 Overruled.
17 THE WITNESS: May I answer?
18 THE COURT: Yes, you may.
19 A. Yes; the characteristics would be what I
20 have described.
21 The characteristics of the sole and
22 upper, and inasmuch as both of them are Lorenzo --
23 Bruno Magli Lorenzo shoes, of course, the
24 characteristics would be the same.
25 Q. (BY MR. MEDVENE) Let's step back for a
26 moment and take a section.
27 When you say "characteristics," when you
28 use that language in your report, what that does that
181
1 mean?
2 A. It means the characteristics that all
3 shoes of a particular brand and style would share.
4 Q. In terms of characteristics, you say they
5 have the same characteristics, which means what?
6 A. The shoes in the Scull photographs and
7 the Flammer photographs are Bruno Magli Lorenzo shoes,
8 which are black.
9 Q. All right, sir.
10 Next, are there specific characteristics
11 that the shoes share?
12 A. Yes, there are.
13 Q. Okay.
14 Could you explain to me what you observed
15 in that regard?
16 Or, let me ask it this way, just to move
17 it along:
18 Did you observe any differences in the
19 specific characteristics that you identified in the
20 Scull photo, from those characteristics you were able
21 to identify in the Flammer photos?
22 A. No, I didn't observe any differences, or
23 I wouldn't have reached the conclusion I reached.
24 MR. MEDVENE: All right, sir. I have nothing
25 further. Thank you.
26 MR. P. BAKER: Nothing.
27 MR. LEONARD: Nothing further.
28 THE COURT: You may step down.
182
1 MR. LEONARD: Can I approach?
2 THE COURT: Wait a minute.
3 Are you done?
4 MR. MEDVENE: Yes, sir.
5 THE COURT: Okay.
6 Ladies and gentlemen, we're going to take
7 a brief recess.
8 Don't talk about the case. Don't form or
9 express any opinion.
10 You may step down.
11
12(Recess.)
13
14
15 (Jurors resume their respective
16 seats.)
17
18 MR. MEDVENE: If the Court please, we move in
19 Exhibits 2407, 2408.
20 THE COURT: Received.
21
22 (The instrument previously marked
23 as Plaintiffs' Exhibit 2407 was
24 received in evidence.)
25
26 (The instrument previously marked
27 as Plaintiffs' Exhibit 2408 was
28 received in evidence.)
183
1
2 MR. PETROCELLI: Your Honor, we have a
3 stipulation with the defense that Exhibit 821 may be
4 received. It is a video dated June 28, 1994, about
5 which there was some prior testimony. So there's a
6 stipulation to that effect.
7 THE COURT: All right.
8
9
10
11 (The instrument previously marked
12 as Plaintiffs' Exhibit 821 for
13 identification was received in
14 evidence.)
15
16 MR. PETROCELLI: All right.
17 And at this point, the plaintiffs' rest
18 their rebuttal case.
19